INTRODUCTION
The problem of art forgery has been an issue in the art world for centuries, posing serious challenges for artists, galleries, collectors and legal professionals. The global art market is full of problems related to establishing authenticity and discovering forgery or fraud. To people involved in this industry, deceptive practices are a common occurrence, making it difficult to preserve the integrity of their institutions and the art works. Authentication techniques and the legal frameworks governing the global art market play a vital role in combating this prominent problem of art forgery.
Intellectual property rights are crucial for protecting artists’ rights in their artwork. Copyrights safeguard creative work from unauthorised reproduction, replication and sale. Unlike patents or trademarks, copyright protection begins as soon as the artistic work is created, without requiring registration.
CURRENT LEGAL FRAMEWORK
Internationally, copyright protection over artworks is primarily governed by the Berne Convention for the Protection of Literary and Artistic Work (1886) and the TRIPS Agreement, administered by WIPO. In India, the Copyright Act, 1957, under Section 2(c) defines the term artistic work. Paintings, sculptures, photographs and works of artistic craftmanship fall under this category of work and are protected by copyright. Similarly, domestic copyright laws have been enacted by various countries in order to have robust measures for the registration and enforcement of copyright.
Despite these frameworks, art forgery remains prevalent. Art forgery involves the creation and selling of art works, by falsely attributing them to renowned artists. Simply put, forgery is to artistic works what counterfeiting is to trademarks. While modern authentication methods have improved with technology, the emergence of digital art, NFTs market and cross-border art purchases have created new challenges.
ART FORGERY AND COPYRIGHT INFRINGEMENT
Art Forgery or Art Fraud involves implementation of deceptive practices to create, advertise or sell fake and forged artworks by knowingly misrepresenting their authenticity or origin. Art forgery can be of many types:
- Misattribution – This practice involves falsely attributing some artwork as being the creation of a famous artist to increase it market value.
- Direct Forgery – This involves the recreation of an artwork made by a famous artist, and portraying it to be the original work of that artist.
- Provenance Fraud – This refers to the practice of fabricating or altering ownership documents or documents related to the artworks’ history to create a false authenticity in the work.
Direct forgery is a form of copyright infringement as it involves the unauthorised replication/reproduction of an artist’s work by a third-party for sale. It is an inherently fraudulent practice and a direct violation of copyright law as the forgers undermine the legal protection afforded to the artistic works. Such acts of infringement are problematic as they misappropriate the intellectual skill and reputation of the original artist by exploiting their work for monetary gain.
There have been several instances of art forgeries till date. Most notably, the Knoedler Gallery scandal involved the sale of fake Abstract Expressionist paintings, including forged worked of artists like Rothko and Pollock, amounting to more than 80 million USD. In another instance, the Jagers collection donated to the Kunsthaus Zurich in 2008 was revealed to include several forgeries. This highlights the challenges of authentication even to established institutions.
The legal liabilities for art forgery can be civil and criminal. In the case of criminal liability, the prosecution is required to establish mens rea, i.e., intentional fraud by knowingly dealing in forgeries. Charges of civil nature result from claims related to breach of contract and negligence, usually against sellers, galleries or intermediaries.
CHALLENGES OF IN COPYRIGHT ENFORCEMENT
Section 51(a) of the Copyright Act, 1957 discusses, in detail, the acts which shall amount to copyright infringement. In the context of artistic works, copyright infringement occurs when an authorised person does any acts to reproduce for sale, hire or distribution, the work of the copyright holder, i.e., the artist or exercises any of the exclusive rights conferred only to the artist.
However, the existing frameworks fall short when it comes to combatting art forgery. This is largely because enforcement of copyright in cases of art forgery is challenging due to legal ambiguities and practical limitations.
- Proof of Infringement – Establishing authenticity of the original work over which copyright is claimed can be a complicated task. If the artistic work is not a well-known or well-documented piece, it can be difficult to establish its provenance due to incomplete records. In such cases, the case for art forgery is likely to fail.
- Limited protection of copyright – Copyright protection is usually given only for a limited duration. In India, copyright protection lasts for lifetime of the author of the work, and extends for a period of 60 years after their death. In the case of antique paintings, the existence of copyright protection for the original work is uncertain. If copyright protection has expired, then forgers can legally make copies of the artistic work, as it is in public domain.
- Cross-border challenges – This is one of the most significant challenges to copyright enforcement in art forgery cases. The prosecution of international crimes is complex and requires substantial resources. Art forgery frequently involves cross border transactions, making enforcement difficult due to the varying jurisdictions and legal frameworks applicable.
- Advancement of forgery techniques – With the development of scientific analysis techniques to identify fraud, forgery techniques are also improving. As a result, it is becoming more difficult to correctly distinguish between genuine works of art and their copies.
While legal frameworks are still playing catch up with advancing forgery techniques, the advent of digital art has introduced new complexities to copyright enforcement. The inherently replicable nature of digital art makes it highly susceptible to copyright infringement. Further, the anonymous nature of digital platforms enables easy proliferation of forged works across multiple jurisdictions. Authentication and determining originality of artworks on a digital platform is highly technical, and is beyond the expertise of most traditional art galleries and collectors.
COMBATTING ART FORGERY TO PROTECT COPYRIGHT OF ARTISTIC WORKS
The prevention of art forgery and copyright infringement requires a multi-pronged approach including legal, technological and institutional measures.
Legal Measures
The implementation of stringent legal mechanisms is essential to effectively counter art forgery and copyright infringement. Firstly, stricter legislation with higher penalties for acts of forgery, including significant fines and imprisonment discourages forgery. Secondly, imposing mandatory legal requirements for provenance documentation will facilitate transparency and reduce instances of fraud. Finally, it is important to bolster international cooperation under the legal frameworks to address cross-border forgery cases and enhance enforcement.
Technological Measures
Utilizing emerging technologies is crucial in combating instances of art forgery and copyright infringement. Enhanced techniques of forensic analysis, blockchain-based ownership tracking will allow for establishing originality and ownership legally. In the case of digital art, digital watermarking technologies are critical in improving traceability and prevent the unauthorised duplication of art work.
Institutional Measures
Art institutions, such as galleries and auction houses, and governments play a significant role in ensuring transparency and integrity of the art market, by ensuring compliance with copyright law. The implementation of mandatory authentication and forensic analysis protocols by certified art experts must be adopted on a wide scale. Further, governments and international organisations must collaborate to implement awareness initiatives to enhance public understanding of art forgery and its copyright implications.
CONCLUSION
Art forgery is a fraudulent practice which directly violates copyright and undermines the rights of artists, harming the integrity of the global art market. Although legal frameworks exist at the national and international level, they seem to be insufficient in overcoming the various challenges of eradicating art forgery. The rising popularity of digital art and NFT-based art has added further complexity to the issue.
Copyright infringement is not only a legal issue, but also has financial and ethical complications. Hence, it is necessary to implement a comprehensive approach to combat the problem. Strengthening existing mechanisms while integrating technology-based improvements will facilitate meaningful steps towards ensuring authenticity, protecting copyright and ensuring that artists are able to retain their rightful value and recognition.
Written by Varshika, Legal Intern at Intepat IP
